USCIS Publishes Rule Prioritizing H-1B Cap Selection for High-Wage Earners

U.S. Citizenship and Immigration Services (USCIS) today published a final rule modifying the annual H-1B cap selection process to favor high-wage earners.  The rule is set to take effect March 9, 2021, in time for the Fiscal Year (FY) 2022 H-1B cap registration and selection process.  However, implementation may be delayed or deferred, due to the impending change in presidential administrations and potential litigation.

Highlights of the Rule

• The rule replaces the current H-1B cap random selection process with a process that prioritizes selection of  H-1B registrations (or filed petitions, if the registration process is suspended) for individuals earning the highest salaries in their area of employment based on Department of Labor (DOL)  Occupational Employment Statistics (OES) wage levels.
• DOL OES wage  surveys have  four wage levels, ranging from entry level (Level I)  to most senior (Level IV).   USCIS intends to rank registrations on the basis of the highest OES wage level that the offered wage equals or exceeds and select registrations in descending order beginning with registrations for individuals that will be paid at least an OES Level IV wage for the designated  occupation in the area of intended employment.
• If USCIS receives a number of registrations at the highest ranked wage level in excess of the annual H-1B cap, a random lottery will be conducted from the registrations at that wage level only.
• If a registration leverages a private wage survey (instead of the DOL OES wage survey) and the private survey wage (regardless of level) is less than a DOL OES Level I wage, USCIS will categorize the registration as a Level I, the lowest priority for selection.
• If a beneficiary will work at multiple worksites in different geographic areas with varying wage levels, USCIS will rank the registration based on the lowest corresponding OES wage level for the occupation.
• The ranked wage level selection process will be implemented for both the H-1B regular cap and H-1B advanced degree cap selection process, in the order established by the H-1B rule implemented in 2019.
• The rule authorizes USCIS to deny any petition subsequently filed for a selected beneficiary if USCIS determines that a new or amended petition was filed to reduce the wage level of the initial petition filed pursuant to the registration.

In general, the rule will significantly and adversely impact employers wishing to sponsor H-1B petitions for entry level professional positions with corresponding entry level wages, including petitions for recent STEM and non-STEM graduates from U.S. universities, as registrations for these positions are less likely to be selected given their low ranking and the number of registrations each year.  The rule will also adversely impact small businesses that may not be able to offer higher wages. Implementation of the rule will inevitably result in a loss of valuable foreign talent, including scientists, health care professionals, IT workers  and others, as foreign student graduates may be forced to depart the U.S. with this key immigration option eliminated.    Foreign students and the H-1B program have long been targets of the Trump administration, though many of these initiatives  have been struck down by federal courts.

What’s Next?

USCIS is currently modifying its H-1B online registration tool to collect the wage and occupation classification data needed to rank registrations. If the online registration tool is not configured in time for the FY 2022 registration cycle (commencing in March 2021), USCIS could suspend the online cap registration process, and instead require employers to submit fully completed H-1B petitions for selection under the H-1B cap, as was the practice in the years prior to 2020.

However, implementation of the rule by March 2021 is not assured.  The rule is vulnerable to legal challenges in  federal court on both procedural and substantive grounds. Additionally, the incoming Biden administration is expected to review all regulations advanced in the waning days of the Trump administration and place any regulation not yet implemented  on hold.  This may sufficiently delay implementation of this rule so that the FY 2022 cap selection process is not impacted.  Longer term, it is not clear whether the Biden Administration will ultimately  oppose this rule. On the one hand, the Biden campaign’s immigration platform does reference support for general reforms establishing a wage-based visa allocation process. At the same time, the platform recognizes the value of retaining foreign talent, in calling to  expand the number of visas for high-skilled workers and exempt recent graduates of U.S. Ph.D. programs in STEM fields from visa caps.

Gibney is closely monitoring this matter and will provide updates as they develop.

What Should Employers Do Now?

Employers should work with immigration counsel now to identify employees  requiring H-1B sponsorship under the FY 2022 H-1B cap, including gathering data related to position duties, requirements, wages and area(s) of intended employment, for the purpose of assessing eligibility for H-1B classification and preparing to submit registrations.

For additional information, please contact your designated Gibney representative.